Likely Coming Friday: A Supreme Court Order to Hear the Texas Redistricting Cases

Tomorrow is one of the last opportunities for the Supreme Court to set cases to be argued this term, which ends in late June. Last week during its private conference the Court considered whether or not to hear the state and congressional Texas redistricting cases. The Court put a decision on what to do with these cases over to this week’s conference. I expect an order tomorrow afternoon setting the cases for full argument.

The cases raise racial gerrymandering, Voting Rights Act, and partisan gerrymandering claims, and they are very complex. The Court already has issued a stay in these cases—the lower court wanted to require drawing new districts to solve the legal problems with the Texas districts, which were drawn by a Republican legislature in a way plaintiffs claim hurt minority voters and Democrats, and take race and partisanship too much into account. The stay is a strong indication the Court is going to get involved here. Further, these cases, like a number of the gerrymandering cases, come up on direct appeal (not a cert petition) from a three judge court, and this mandatory appellate jurisdiction pushes the Court to hear these kinds of cases. (A decision to not hear an appeal counts as a decision on the merits.)

The only caveat to this expectation is that the Court could decide not to hear the cases, and hold them for the partisan gerrymandering cases they are already hearing, from Wisconsin and Maryland. But the Texas cases raise some very different issues as well, which suggests they should get a full hearing.

It is shaping up to be a blockbuster term on gerrymandering at the Supreme Court this term.